33 Cal. 161 | Cal. | 1867
Lead Opinion
This is an appeal from an order denying a motion to dissolve an attachment. The action is against sureties on an appeal bond, which is in the ordinary form of an undertaking on appeal where a stay of proceedings is sought. It contains two premises. 1st. “ That the appellant will pay all the damages and costs which may be awarded against the defendant on the appeal, not exceeding three hundred dollars;” and, 2d. “ That if the judgment appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be paid thereby, or the part of such amount, as
The language of the statute is that a plaintiff may have an attachment “ in an action upon a contract, express or implied, for the direct payment of money,” etc.
So far as we are advised this precise language is peculiar to our statute. We do not find it, nor language substantially like it, in the statutes of any other State to which our attention has been called, and we find no little difficulty in coming to a satisfactory conclusion as to the precise meaning which the Legislature intended to convey by its use. It is very clear that the cause of action . must be for the recovery of money only, and must arise out of contract, either exprése or implied; and it is equally clear that an attachment is not allowed in all cases arising out of contract where compensation in money can be recovered. It is further apparent that the distinguishing features lie in the words “ direct payment.” The defendant must have contracted for the “ direct payment of money,” or his goods cannot be attached. But what does “direct payment” mean?—or what does indirect payment mean ? Whoever undertakes to answer these questions in a manner at all satisfactory to himself will first come to the conclusion that the Legislature has expressed its will in language not a little obscure. The Legislature is said to employ words not technical in their ordinary and popular sense.
What meaning would the unprofessional man give to the words in question ? As to the word “ payment,” he would answer promptly: “it is the delivery of money by one person from whom it is due to another person to whom it is due,” but when he undertakes to draw the distinction between a direct and an indirect delivery of money he will not answer so readily, if at all. “ Direct ” means straightforward, not crooked, not winding, not circuitous, not side
In the law of contracts we find the word “ collateral ” used, and if the word “ direct ” qualified the word “ contract ” so as to make the statute read, “ on a direct contract for the payment of money,” we might, with some reason, hold that it was used as the opposite of collateral and that all contracts of a collateral character are not within the statute; but it does not, and to hold that it has that effect in its present place would be to violate one of the plainest usages of our language. A collateral contract or promise may be for the direct payment of money, for aught we can perceive, as well as the principal promise, and hence the distinction, whatever it may be, cannot lie between them. It follows that the word “ direct ” has been used in some unnatural or strained sense and must be entirely disregarded unless we find something in the context or‘general policy of the Act which will serve to illustrate the sense in which it is used. "We think a clue is afforded in the next section (one hundred and twenty-one) where the plaintiff is required to make a certain affidavit in order to procure an attachment. He must be able to swear, among other things, that the defendant is indebted in a certain sum, specifying the amount. This language excludes all causes of action for unliquidated sums of money; for, until they have been liquidated by the verdict of a jury, it is impossible for the plaintiff to swear to "the amount, and confines the right of the plaintiff to an attach
To read “ direct ” as the opposite to “ collateral,” would be to_ create a distinction of very doubtful foundation and certainly opposed to the general policy of the Act. To so read it would be to exempt all collateral contracts from the operation of the Act. Indorsers, guarantors, sureties and all others who undertake to pay or become responsible for the debts of another could not be reached by attachment; and yet there can be no good reason why they should be excepted. We are of the opinion that the Legislature intended no such distinction.
The claim that the complaint does not state a cause of action, and that the attachment should have been dissolved for that reason, cannot be sustained. Unless the complaint shows upon its face that the plaintiff has no cause of action with the help of an amendment, the attachment should not be dissolved. If the complaint is defective merely, and can
Nor is the point that the appeal from the judgment was not taken within time, and that for that reason the undertaking of the sureties was without consideration, available to the defendants. Concede that the undertaking did not operate to legally stay proceedings upon the judgment, (a point which we do not decide,) yet it in fact had that effect, and the appellants received all the benefit for which their sureties contracted, and were they allowed now to say that their undertaking was nudum pactum, gross injustice might be done to the plaintiff because he did not choose to act upon a doubtful right. Moreover, they cannot be allowed to question the validity of the judgment of affirmance on the score
There is nothing in the point in relation to Leland. His release was not the act of the plaintiff but of death, and counsel for appellants cite us to no rule of law by which the plaintiff was bound to present his claim against his estate, or forfeit all right of action against his co-sureties.
Order affirmed.
Dissenting Opinion
The undertaking upon which a recovery is sought is “ that the appellants will pay all damages and costs which may be awarded against defendant on the appeal, not exceeding three hundred dollars.” This appears to me to be an undertaking that another party shall pay, and not that the party himself will pay. There is no promise that the defendants themselves will pay any money at all, and consequently no contract on their part for the direct payment of money. On a failure of the appellants in the suit to pay in accordance with the terms of the undertaking, there is a breach, it is true, and the party to the undertaking is liable for damages for the breach. But the liability is strictly for damages, and not on his own con- ' tract that he himself will pay money.. For these reasons I think there was no contract, express or implied, on the part of the defendant for the direct payment of money within the meaning of the Attachment Law, and that an attachment is unauthorized.